Criminal Revision Application No.108 of 2012
Date Order with signature of the Judge
For Regular Hearing.
---------------------------
Mr. Shaukat Hayat, Advocate for Applicant.
Mr. Ashfaq Ahmed Tagar, D.A.G. for the State.
-------------------------
O R D E R
SAJJAD ALI SHAH, J : -- Notices upon respondent were served through SHO of Police Station Mithadar and on 12.02.2013 Ms. Naheed A. Shahid Advocate had effected appearance on behalf of respondent and requested time for filing vakalatnama and consequently matter was adjourned to 27.3.2013, on that date Ms. Naheed Shahid again made a request for adjournment on the ground that due to ailment of respondent’s father he could not contact her. We consequently while admitting this Criminal Revision Application had fixed it for today for regular hearing.
Today Ms. Naheed Shahid says that despite her request and reminder the respondent failed to appear and execute her vakalatnama. Since the respondent was duly served and per Ms. Naheed Shahid, respondent was in continuous touch with her and deliberately avoiding to effect appearance before this Court, therefore, we take up this matter for regular hearing.
Through this Criminal Revision Application, applicant Bank Al-Falah, a financial institution, has called in question Order dated 20.04.2012 passed by Special Court (Offences in Banks) Sindh at Karachi whereby a direct complaint filed by the said financial institution against the respondent under Sections 406 & 420 PPC after recording the statement of the complainant’s witnesses was dismissed under Section 203 Cr.P.C.
Briefly, accused Muhammad Aslam was maintaining his account at Paper Market Branch of the complainant and a cheque of Rs.500,000/- drawn by one Muhammad Shahid in the name of M. Siddiq of Timber Market Branch which was erroneously credited in his account and a part of such money was withdrawn by the accused from his account and on demand by the complainant, he refused to pay back, leading to filing of a criminal complaint.
Mr. Shaukat Hayyat, learned counsel appearing for the applicant, contends that on 04.02.2011 when said sum of Rs.500,000/- was erroneously credited in the account of accused there was a credit balance of Rs.653/- only in his account and, therefore, he was fully aware that the amount so credited in his account did not belong to him despite he withdrew and utilized the same and, therefore, is liable to the consequences as provided under Section 405 PPC and is liable to be punished under Section 406 PPC. He further asserted that by refusing to repay the said amount the applicant has further committed an offence and is liable to be punished under Section 420 PPC. It was contended that being account holder applicant has violated the terms and conditions of his account and has fraudulently and deceitfully committed breach of trust by misappropriating amount of the bank and caused wrongful gain to himself, therefore, he was liable to be prosecuted and punished accordingly. It was, therefore, prayed that impugned order be set aside and the Banking Court be directed to proceed with the direct complaint in accordance with law.
Mr. Ashfaq Ahmed Tagar, DAG for the State does not support the impugned order.
We have heard the learned counsel and have minutely scrutinized the record as well as the provisions of law under which the direct complaint was filed.
It appears that the accused was maintaining an account with the complainant’s Paper Market Branch whereas, one Muhammad Shahid holding an account at complainant’s Sher Shah Branch, Karachi drew a cheque directing the complainant’s Sher Shah Branch to credit a sum of Rs.500,000/- in the account of one M. Sadiq at its Timber Market Branch. It appears that due to negligence of the official of the complainant who by ignoring the directions of their account holder Muhammad Shahid instead of crediting Rs.500,000/- in the account of M. Sadiq at Timber Market Branch credited the said amount in the account of accused at Sher Shah Branch. The excuse pleaded before us is that the official of the bank made an error in recording branch code and consequently the amount was wrongly transferred in the account of respondent. Notwithstanding, the question which requires consideration is as to whether the erroneous deposit of Rs.500,000/- in the account of the accused can be termed as entrustment or there was any inducement on the part of the respondent for procuring the said amount in his account, so that the refusal to pay could be termed as breach of trust or cheating.
Minute perusal of Sections 420 and 405, PPC reflects that an accused person could not be simultaneously tried or convicted for an offence of cheating and criminal misappropriation for the reason that to attract the ingredients of an offence under Section 420, PPC, it is essential to prove that the person deceived was dishonestly induced to deliver the valuable security or property and that the person so deceived actually had acted on such inducement and in consequent thereof, has handed over the valuable security or property. Whereas in criminal breach of trust it is necessary to establish that the property in respect whereof criminal breach of trust is committed must be the property of some person other than the accused or the beneficial interest in or ownership of such property must be in some other person and the offender must hold such property on trust for such other person or in some way for his benefit.
In the instant case admittedly the complainant was not dishonestly deceived or induced by the accused persons to deliver the amount in question nor the complainant had entrusted the said property to accused person which such accused has converted to his own use or altered or destroyed the same, therefore, in our opinion neither ingredients of Section 405 PPC nor of Section 420 PPC can be made applicable to this case. However, keeping in view the facts pleaded before us that on 04.02.2011 when Rs.500,000/- were erroneously credited into the account of accused he was maintaining credit balance of Rs.653/- only and therefore, he was fully aware while withdrawing Rs.80,000/- on 07.02.2011 and thereafter Rs.300,000/- on the same date that this money does not belong to him. The scrutiny of the entire statement of account of the accused which has been submitted before us commencing from January 2009 till February 2011 reflects that after July 2010 the statement of accused of the accused does not reflect any credit entry of six figures and mostly the accused was maintaining a debit balance and perhaps the learned Banking Court should have examined this aspect on the basis of the allegation made in the complaint perhaps an offence under Section 403 PPC which also is a schedule offence could be made out. The learned Judge, in our opinion, was not supposed to examine the complaint only on the basis of Section of Law mentioned therein, but ought to have examined the allegation and should have come to his own conclusion, as to whether, such allegations make out an offence the cognizance whereof could be taken by the Court under Ordinance, 1984 as a schedule offence.
We in the circumstances while allowing this Criminal Revision Application set aside the order impugned and direct the trial Court to issue process and to proceed with the complaint in accordance with law.
JUDGE
JUDGE